Federal Court (FCA). The Appellant's judicial review application to the Federal Circuit Court was dismissed. He then appealed that decision to the FCA. During FCA proceedings, the Minister identified an error by the IAA which had not been identified by the Appellant and conceded the appeal on that basis. Should the Appellant obtain an order for costs at first instance?
The (then self-represented) Appellant's judicial review application to the Federal Circuit Court (FCCA) was dismissed. The Appellant then appealed that decision to the Federal Court (FCA), which summarised the "features of some significance in this proceeding as follows:
(a) the appellant filed an application in the Federal Circuit Court seeking review of a decision of the Authority on 3 September 2019. He was unrepresented at all times during the proceeding and at no time did a lawyer appear on the record;
(b) the appellant raised three grounds of review in that proceeding. None of those formed the basis on which the appellant has now been successful by the Minister’s concession. The notice of appeal raised two further grounds. Again, neither of these grounds identifies the error upon which the appellant has succeeded;
(c) at no time after the date of receipt of counsel’s advice did the appellant seek to amend his application to identify what the Minister has now accepted to be a jurisdictional error requiring remittal; and
(d) the error that has required the matter to be remitted was identified by the solicitor for the Minister entirely independently of the appellant".
Should it follow from the fact that the Minister conceded the case at the FCA that the Appellant should obtain an order for costs at first instance?
The FCA answered that question as follows: